PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2365

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - Appellant,
v.
FREEMAN,
Defendant Appellee,
and
THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,
Intervenor.
-------------------------PACIFIC LEGAL FOUNDATION; EQUAL EMPLOYMENT ADVISORY COUNCIL;
NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS
LEGAL CENTER; RETAIL LITIGATION CENTER; CHAMBER OF COMMERCE
OF THE UNITED STATES OF AMERICA,
Amici Supporting Appellee.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:09-cv-02573-RWT)

Argued:

October 29, 2014

Decided:

Before GREGORY, AGEE, and DIAZ, Circuit Judges.

February 20, 2015

Affirmed by published opinion. Judge Gregory wrote the opinion,

in which Judge Agee and Judge Diaz joined.
Judge Agee wrote a
separate concurring opinion.

ARGUED: Anne Noel Occhialino, U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Washington, D.C., for Appellant.
Donald R.
Livingston, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington,
D.C., for Appellee. ON BRIEF: P. David Lopez, General Counsel,
Lorraine C. Davis, Acting Associate General Counsel, Jennifer S.
Goldstein,
U.S.
EQUAL
EMPLOYMENT
OPPORTUNITY
COMMISSION,
Washington, D.C., for Appellant.
W. Randolph Teslik, Hyland
Hunt, John T. Koerner, AKIN GUMP STRAUSS HAUER & FELD LLP,
Washington, D.C., for Appellee.
Meriem L. Hubbard, Joshua P.
Thompson, Jonathan W. Williams, PACIFIC LEGAL FOUNDATION,
Sacramento, California, for Amicus Pacific Legal Foundation.
Karen R. Harned, Elizabeth Milito, NATIONAL FEDERATION OF
INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, Washington,
D.C., for Amicus National Federal of Independent Business Small
Business Legal Center.
Rae T. Vann, NORRIS, TYSSE, LAMPLEY &
LAKIS, LLP, Washington, D.C., for Amicus Equal Employment
Advisory Council.
Deborah R. White, RETAIL LITIGATION CENTER,
INC., Arlington, Virginia, for Amicus Retail Litigation Center.
Rachel L. Brand, Steven P. Lehotsky, NATIONAL CHAMBER LITIGATION
CENTER, INC., Washington, D.C.; Eric S. Dreiband, Emily J.
Kennedy, JONES DAY, Washington, D.C., for Amicus Chamber of
Commerce of the United States of America.

GREGORY, Circuit Judge:

In 2001, Freeman began conducting background checks on its
job

applicants,

which

the

Equal

Employment

Opportunity

Commission (EEOC) alleges had an unlawful disparate impact on

black

and

male

job

applicants.

The

district

court

granted

summary judgment to Freeman after excluding the EEOCs expert

testimony
Without

as

unreliable

under

this

testimony,

the

Federal

district

Rule
court

of

Evidence

found

the

702.

agency

failed to establish a prima facie case of discrimination.

For

the reasons below, we affirm the district courts exclusion of

the EEOCs expert testimony and grant of summary judgment to
Freeman.

I.
Freeman

is

provider

of

integrated

services

for

expositions, conventions, and corporate events, with offices in

major cities throughout the United States.
commenced

background

criminal

justice

required

for

checks

histories.

all

of

job

Criminal

applicants,

and

In 2001, the company

applicants
background

credit

history

credit

and

checks

were

checks

for

credit sensitive positions involving money handling or access

to

sensitive

criminal
histories

financial

background
revealed

information.

check

policies

certain

excluded

prohibited
3

Freemans

credit

applicants

criteria.

and
whose

If

an

applicants history included one of the listed criteria, like a

conviction for a crime of violence, the applicant was not hired. 1
Freeman modified these criteria on July 20, 2006, and again on
August

11,

2011,

after

which

it

no

longer

conducted

credit

checks.
In 2008, after an applicant who was denied a position filed
a charge of discrimination, the EEOC began an investigation of
Freemans
notified

credit
Freeman

check
it

policy.

was

On

expanding

criminal background check policy.

September

this

25,

2008,

investigation

to

it
the

On March 27, 2009, the EEOC

issued a letter of determination finding Freemans use of credit

and criminal checks violated Title VII.
After
Sections
2000e-6.

conciliation

706

and

707

of

failed,

the

Title

VII. 2

EEOC
42

filed

suit

under

U.S.C.

2000e-5,

It alleged Freemans criminal checks had a disparate

Freeman required a form authorizing a background search to

be completed with each job application, which, according to a
company handbook, Freeman thought would deter individuals with
negative information from applying.
However, the checks were
not conducted until after a conditional offer of employment had
been made.
It appears most criteria, as well as making false
statements
on
the
job
application,
led
to
automatic
disqualification.
But, Freeman usually gave applicants a
reasonable amount of time to resolve outstanding arrest warrants
before rescinding an offer.
2

The Office of Personnel Management intervened in the case

to protect the confidentiality of information related to federal
government background investigations, which Freeman sought.
4

impact on black and male job applicants, 3 and that the credit
checks had a disparate impact on black job applicants.

The

district court subsequently limited the class of applicants on

behalf of which the EEOC could seek relief to those individuals
affected by criminal checks from November 30, 2007 to July 12,
2012, and those affected by credit checks from March 23, 2007 to
August 11, 2011.
The
report

case

proceeded

by

Kevin

to

discovery.

Murphy,

an

The

EEOC

produced

industrial/organizational

psychologist, and one by Beth Huebner, an associate professor of

criminology,

which

purported

to

replicate

Murphys

results.

Then, eight days after its expert disclosure deadline, the EEOC
produced an amended report from Murphy with slightly altered
calculations.

Freeman moved to exclude Murphys and Huebners

reports and also moved for summary judgment.

In response to

Freemans motion to exclude, the EEOC filed a new declaration

and supplemental report from Murphy, with revised calculations
and the results from his analysis of a new, expanded database.
The EEOC also moved to file a sur-reply, and while that motion
was

pending,

served

Freeman

yet

another

supplemental

expert

The EEOCs complaint originally alleged the checks also

had a disparate impact on Hispanics. After its expert found no
statistically significant effect on Hispanic applicants, the
parties jointly dismissed the EEOCs claim that the criminal
checks discriminated against this class.
5

report from Murphy, as well as a supplemental report by Huebner,

which the agency sought to introduce at the summary judgment
hearing on June 19, 2013.
The district court denied the EEOCs motion for leave to
file

sur-reply

Murphys

and

granted

testimony

on

errors

and

analytical

Rule of Evidence 702.

summary judgment.

the

Freemans

basis

completely

that

motion
it

to

was

unreliable

exclude

rife

under

with

Federal

The court granted Freemans motion for

The EEOC timely appealed.

II.
Federal Rule of Evidence 702 governs the admissibility of
expert evidence.
if

it

rests

Expert testimony under Rule 702 is admissible

on

reliable

foundation

and

is

relevant.

Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4th Cir.
1999) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141
(1999)).

In determining reliability, a district court exercises

a special gatekeeping obligation.

See Kumho, 526 U.S. at 147.

It possesses broad latitude to take into account any factors

bearing

on

validity

that

the

court

finds

to

be

useful. 4

These factors may include whether the reasoning

methodology underlying the experts opinion has been or could
tested; whether the reasoning or methodology has been subject
peer review and publication; the known or potential rate
error; and the level of acceptance of the reasoning
(Continued)
6

or
be
to
of
or

Westberry,

178

gatekeeping

F.3d

inquiry

at
will

261.

The

scope

depend

upon

the

testimony and facts of the case.

We

review

exclude

expert

evidence

for

F.3d

261.

Westberry,

178

discretion

if

it

district

at

relies

erroneous factual finding.

the

courts

particular

expert

See Kumho, 526 U.S. at 150.

courts
an

on

of

abuse
A

an

decision
of

district
error

See id.

of

to

admit

or

to

discretion.

See

court

its

law

or

abuses
a

clearly

We reverse the district

court only if we have a definite and firm conviction that the

court

below

committed

clear

error

of

judgment

in

the

conclusion it reached upon a weighing of the relevant factors.

Id. (quoting Wilson v. Volkswagen of Am., Inc., 561 F.2d 494,
506 (4th Cir. 1977)).
A.
The district court identified an alarming number of errors
and

analytical

fallacies

in

Murphys

reports,

impossible to rely on any of his conclusions.

making

it

Freeman provided

the EEOC with complete background check logs for hundreds, if

not thousands, of applicants who Murphy did not include in his
database of fewer than 2,014 background checks conducted largely
before October 14, 2008.

J.A. 1061.

Only 19 post-October 14,

methodology by the relevant professional community. Westberry,

178 F.3d at 261 n.1 (citing Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 593-94 (1993)).
7

2008 applicants were included in Murphys database, all but one

of

whom

failed

the

checks.

J.A.

1063.

However,

Freeman,

through its background check vendor, conducted more than 1,500

criminal

background

investigations

and

more

than

300

credit

investigations on applicants between October 15, 2008 to August

31, 2011 with Freeman producing in discovery race and gender
information for hundreds of these applicants.

J.A. 461-62.

Murphy furthermore omitted data from half of Freemans branch

offices.

This is despite the fact that he did not seek to

utilize

purported

sample
to

size

analyze

from
all

the

relevant

background

time

checks

period,

with

but

verified

outcomes.
Most troubling, the district court found a mind-boggling
number

of

database.

errors

and

unexplained

discrepancies

in

Murphys

For example, looking at a subset of 41 individuals

for whom the EEOC is seeking back pay, 29 had at least one error
or omission.

Seven were missing from the database altogether.

Seven were listed in the database without a race code, one was
incorrectly coded as passing the criminal background check, two
were incorrectly coded as failing the criminal background check,
one ha[d] an incorrect race code, five ha[d] incorrect gender
codes, nine [we]re listed twice and double-counted in Murphys
results, and three who failed the credit check [we]re not coded
with a credit check result.

J.A. 1064.
8

The EEOC claims these

errors were present in the original data, a contention dispelled

by comparing the information from the discovery materials to
Murphys database.

It was in fact Murphy who introduced these

errors into his own analysis. 5

The EEOC also contends that Murphy fixed any errors in his
analysis

in

subsequently-filed,

supplemental

reports.

The

district court examined a third report by Murphy 6 and found that

he did not make certain corrections to his database, despite
claims of doing so.
change

incorrect

Contrary to his assertions, Murphy did not

coding

of

race

several individuals.

J.A. 1065.

that

to

Murphy

managed

and

pass/fail

status

for

The district court also found

introduce

fresh

errors

into

his

new

analysis, like double-counting applicants who had failed their

background checks. 7

Id.

And Murphys new, expanded database

Although Murphy contends that any errors in the data were

in the discovery materials from Freeman, we do not discern any
clear error by the district court in making this factual
finding.
6

The EEOC proffered a fourth report by Murphy at the

summary judgment hearing, but did not attach it to the agencys
earlier motion to file a sur-reply.
The district court also
found the EEOC never properly offered Huebners supplemental
report.
The court declined to allow the EEOC to file a surreply, and we therefore find that neither Murphys fourth report
nor Huebners supplemental report are part of the record.
7

The district court also held that Murphys third and

fourth reports were not proper supplements under Federal Rule of
Civil Procedure 26(e), but were poorly disguised attempts to
counter Defendants arguments with new expert analyses.
We
agree that EEOC cannot use Rule 26(e) as a loophole . . . [to]
(Continued)
9

still omitted hundreds of applicants for whom Freeman produced

complete information in discovery.
The

sheer

analysis

renders

reasonably
cannot

number

say

it

mistakes

outside

differ.
the

of

Kumho,

district

and

the
526

omissions

range

U.S.

court

where

at

its

Murphys

experts

153.

abused

in

We

might

therefore

discretion

in

ultimately excluding Murphys expert testimony as unreliable.

III.
We affirm the district courts grant of summary judgment 8 to
Freeman solely on the basis that the district court did not
abuse

its

discretion

in

excluding

unreliable under Rule 702.

EEOCs

expert

reports

as

We decline to consider whether the

district court erred in limiting the time period in which the

EEOC

could

seek

inconsequential
utterly

relief,
in

unreliable

light

as
of

analysis.

any

error

Murphys
We

in

this

regard

was

pervasive

errors

and

decline

to

reach

any

other

issues in the district courts opinion.

AFFIRMED

revise [its] disclosures in light of [Freemans] challenges to

the analysis and conclusions therein.
Luke v. Family Care &
Urgent Med. Clinics, 323 F. Appx 496, 500 (9th Cir. 2009).
8

We emphasize that by our disposition we express no opinion

on the merits of the EEOCs claims.
10

AGEE, Circuit Judge, concurring:

Although

concur

in

Judge

Gregorys

opinion,

write

separately to address my concern with the EEOCs disappointing

litigation

conduct.

The

Commissions

work

of

serving

the

public interest is jeopardized by the kind of missteps that

occurred here.
326 (1980).
proffer

Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318,

And it troubles me that the Commission continues to

expert

testimony

from

witness

whose

work

has

been

roundly rejected in our sister circuits for similar deficiencies

to those we observe here.
reconsider

pursuing

It is my hope that the agency will

course

that

does

not

serve

it

or

the

public interest well.

I.
As in other cases, the EEOC proffered expert testimony to
establish the alleged disparate impact of Freemans background
check

policies.

Yet

the

expert

testimony

here

was

fatally

flawed in multiple respects.

A.
The district court used harsh words to describe the work of
the EEOCs expert, Kevin R. Murphy.
Murphys

reports

contained

fallacies,

reflected

meaningless,

skewed

plethora

cherry-picked

statistic,
11

The court found that

and

of

data,

included

analytical
produced

mind-boggling

number of errors.
(D.

Md.

2013).

EEOC v. Freeman, 961 F. Supp. 2d 783, 793-96

Even

when

Murphy

submitted

late-in-the-day

amendments, he still relied upon a skewed database plagued by

material

fallacies.

Id.

at

796.

The

slapdash

nature

of

Murphys work convinced the district court that the EEOC had
only a theory in search of facts to support it.
The

majority

opinion

rightly

agrees

Id. at 803.

with

the

district

courts view, as Murphys work simply did not meet the standards
for expert testimony that Federal Rule of Evidence 702 provides.
But this was not a close question, and three problems merit
special recognition.
First, courts often caution experts against drawing broad
conclusions from incomplete data.

In Lilly v. Harris-Teeter

Supermarket, 720 F.2d 326 (4th Cir. 1983), for instance, this
Court criticized an expert for using data from only a limited
set of relevant locations and years to draw conclusions about a
much broader class.

See id. at 337 (The first problem with

this data, however, is that its scope -- covering the stores and
warehouse for only 1976 and only the stores for 1975 -- is
insufficient to prove discrimination from 1974 through 1978.);
see also EEOC v. Am. Natl Bank, 652 F.2d 1176, 1195 (4th Cir.
1981)

(deeming

expert

evidence

unreliable

where

it

drew

conclusions about seven-year period from only one of those seven

years).

The principle espoused in Lilly derives from a common12

sense idea: expert work should not be considered [w]hen the

assumptions made by [the] expert are not based on fact.

Tyger

Constr. Co. v. Pensacola Constr. Co., 29 F.3d 137, 144 (4th Cir.
1994).
Yet as the majority notes, Murphy made the very mistake
identified
relevant

in

Lilly:

periods

and

he

omitted

locations.

important
The

information

EEOC

challenged

from
credit

check policies beginning in late March 2007 and ending in early

August

2011;

its

criminal-background-check

November 30, 2007 to the present.

claims

spanned

For reasons unknown, Murphys

data included barely any information on applicants after midOctober

2008

relevant

and

--

ignoring

available

at

data

least

for

each

two-and-a-half
claim.

By

years

of

arbitrarily

putting aside those years, Murphy ignored 300 credit checks and
1,500 criminal background checks.

Indeed, Murphy even ignored

applicant data on persons that the EEOC identified as purported

victims.
background

Worse
check

still,
data

Murphy

from

21

ignored
of

relevant

Freemans

39

criminal
different

locations.
Neither Murphy nor the agency explained these omissions.
Although the EEOC speculates that Freeman produced incomplete
data, the record says differently.

Among other things, Freeman

produced applicant logs, datasheets, and background check forms

that Murphy could have used to compile relevant information.
13

Thus, as the majority indicates, the district courts finding

that Freeman presented more than sufficient data is far from
clearly erroneous.

For his part, Murphy insisted that there was

no need to look at more of the available information regardless

of relevance.

Yet he never explained why his model incorporated

enough observations to ensure a valid statistical result. 1

Second, courts have consistently excluded expert testimony
that cherry-picks relevant data.

See, e.g., Bricklayers &

Trowel Trades Intl Pension Fund v. Credit Suisse Secs. (USA)

L.L.C, 752 F.3d 82, 92 (1st Cir. 2014); Greater New Orleans Fair
Hous. Action Ctr. v. U.S. Dept of Hous. & Urban Dev., 639 F.3d
1078, 1086 (D.C. Cir. 2011); Barber v. United Airlines, Inc., 17

Experts may use appropriate sampling methods to draw

conclusions. But determining an appropriate sample size can be
a tricky question in statistics, Am. Honda Motor Co., Inc. v.
Allen, 600 F.3d 813, 818 (7th Cir. 2010) (per curiam), and
Murphy never engaged with it.
Some evidence suggests that
Murphy used a convenience sample - that is, he used only the
information that was readily at hand.
See J.A. 797-98
(indicating that Murphy analyzed only data that was entirely
complete without the need for supplementation); see also
Freeman, 961 F. Supp. 2d at 794 (Murphy instead relied almost
entirely on the two Excel spreadsheets in creating his
database).
Although convenience samples are easy to take,
they may suffer from serious bias.
David H. Kaye & David
Freeman, Reference Guide on Statistics in Reference Manual on
Scientific Evidence 83, 162 (Fed. Judicial Ctr. 2d ed. 2000).
Murphy was no stranger to having courts reject his work for
improper sampling.
See EEOC v. Kaplan Higher Learning Educ.
Corp., No. 1:10 CV 2882, 2013 WL 322116, at *11 (N.D. Ohio Jan.
28, 2013) (criticizing Murphy for failing to explain why his
selective use of data did not skew the sample), affd 748 F.3d
749 (6th Cir. 2014).
14

F. Appx 433, 437 (7th Cir. 2001); Fail-Safe, LLC v. A.O. Smith
Corp., 744 F. Supp. 2d 870, 891 (E.D. Wis. 2010); In re Bextra &
Celebrex Mktg.

Sales

Practices

&

Prod.

Liab.

Supp. 2d 1166, 1176-77 (N.D. Cal. 2007).

Litig.,

524

F.

Cherry-picking data

is essentially the converse of omitting it: just as omitting

data might distort the result by overlooking unfavorable data,
cherry-picking data produces a misleadingly favorable result by
looking only to good outcomes.
Murphy undeniably cherry-picked.
post-October-2008
applicants.

data

that

Murphy

The very few pieces of

included

consisted

of

19

Of those 19, one was a double-counted applicant,

one was a fail miscoded as a pass, and the remaining were

all fails under one or the other (or both) checks.

This 100%

failure rate among the 19 post-October-2008 applicants wildly

varies from the 3.5% failure rate for criminal checks and 9.9%
failure rate for credit checks reflected in the rest of the
data.

See J.A. 326 (noting that the likelihood of failing

either [check] is low).

Thus, not only was Murphy capriciously

selective in his use of post-October-2008 data, but the high

number
fully

of

fails

intended

certainly

to

thought

among
skew
so,

his

few

the

selections

results.

terming

Murphys

example of scientific dishonesty.

792.
15

suggests

The
work

that

district
an

he

court

egregious

Freeman, 961 F. Supp. 2d at

Finally,

Murphys

analysis

contained

many

obvious

errors

and mistakes, and these factual deficiencies further evidence

his

faulty

methods

and

lack

of

investigation.

Brown

v.

Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 773 (7th Cir.
2014); see also Dart v. Kitchens Bros. Mfg. Co., 253 F. Appx
395, 399 (5th Cir. 2007) (noting that basic mathematical errors
and flaws in methodology were appropriate reasons to exclude an
expert); cf. Overton v. City of Austin, 871 F.2d 529, 539 (5th
Cir. 1989) (per curiam) ([A] trial court should not ignore the
imperfections

of

the

data

used[.]).

For

example,

Murphys

initial statistical analysis was filled with basic arithmetic

mistakes.

Even once those fundamental errors were corrected,

problems lingered.
and

gender

information.
well

as

race

Murphy excluded applicants with known race

information,

inaccurately

claiming

incomplete

He miscoded criminal and credit check outcomes, as

and

other applicants.

gender

information.

And

he

double-counted

As the majority recounts, within a sample of

41 known victims in Murphys database, 29 of those 41 (or more

than 70%) had errors or omissions.
In sum, Murphys work was riddled with fundamental errors,
mistakes, and misrepresentations.

I certainly agree with the

majoritys determination that the district court appropriately

excluded Murphys evidence.

16

B.
These problems would be troubling enough standing alone,
but

they

are

even

more

disquieting

in

the

context

of

what

appears to be a pattern of suspect work from Murphy.

EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th
Cir. 2014), provides only the most recent example.

There, the

EEOC sought to use Murphys testimony to challenge an employers

use of credit checks, just as it did here. 2
Circuit,

however,

unanimously

affirmed

A panel of the Sixth

the

decision to exclude Murphys determinations.

district

courts

Like his work in

this case, Murphys analysis in Kaplan was filled with errors;

among other things, he again overrepresented fails generally
and

again

sample.

drew

conclusions

Id. at 752, 754.

from

skewed,

unrepresentative

When the defendant in Kaplan noted

several such problems, Murphy responded by filing a series of

late reports attempting to repair his earlier ones - much as he
did in this case. 3

The Sixth Circuit held that, despite Murphys

In Kaplan, the EEOC sued the defendants for using the

same type of background check that the EEOC itself uses.
748
F.3d at 750. The EEOCs claim here is largely the same. Still,
the irony of that course is not the subject of this appeal,
which focuses only upon the actions that the agency undertook in
presenting its case.
3

In the present case, Murphy submitted additional reports

right up to the day of the summary judgment hearing.
As the
majority notes, the district court correctly saw these lastminute changes for what they were: poorly disguised attempts to
(Continued)
17

eleventh-hour

effort

to

patch

his

mistakes,

his

methodology

flunked every test used to assess expert reliability.

752.

Id. at

After cataloguing a variety of flaws in Murphys analysis,

the Sixth Circuit concluded that Murphys testimony amounted to

a homemade methodology, crafted by a witness with no particular
expertise

to

craft

it,

administered

by

persons

with

no

particular expertise to administer it, tested by no one, and

accepted

only

by

the

witness

himself.

Id.

at

754.

That

account describes the EEOCs expert evidence in this case to a

tee.
Murphys
Over

flawed

decade

ago,

approach
in

is

Cooper

not

v.

just

Southern

different but no less severe criticism.

recent

Co.,

problem.

Murphy

drew

See 390 F.3d 695 (11th

Cir. 2004), overruled in part by Ash v. Tyson Foods, Inc., 564

U.S.

454,

456-57

(2006)

(per

curiam).

The

Eleventh

Circuit

concluded a report from Murphy served only to recapitulate[]

the

basic

allegations

expert report.

of

the

plaintiffs

Id. at 716 n.10.

in

the

guise

of

an

Indeed, his report lacked any

counter
[Freeman]s
arguments
with
new
expert
analyses.
Freeman, 961 F. Supp. 2d at 797. The EEOC nevertheless insists
that the tardy reports were merely supplements.
But [t]o
construe Rule 26(e) supplementation to apply whenever a party
wants to bolster or submit additional expert opinions would
wreak havoc in docket control and amount to unlimited expert
opinion preparation.
Campbell v. United States, 470 F. Appx
153, 157 (4th Cir. 2012) (quotation marks and alterations
omitted).
18

statistical evidence to substantiate [its] broad claims.

Id.

Thus, the report and the sweeping conclusions within it were

of extremely limited use.

Id.

Other recent cases provide additional examples of Murphys

lax attitude towards scientific rigor.

In Boelk v. AT & T

Teleholdings, Inc., No. 12cv40bbc, 2013 WL 3777251 (W.D. Wis.

July 19, 2013), for example, Murphy attempted to offer an expert
opinion

premised

on

foreseeab[ility].

common

sense,

Id. at *8.

obvious[ness],

and

Unsurprisingly, the district

court held that such testimony was not the appropriate subject
of expert testimony and did not create a genuine dispute of
material fact at summary judgment.
theme,

the

court

dubbed

Murphys

speculative to be useful.
rejected

Murphys

incorrectly

Id.

conclusions,

accused

another

assumptions in her report.

Id.

Echoing a familiar

testimony

too

general

and

The Second Circuit too has

holding

expert

of

that

Murphy

making

had

unfounded

See M.O.C.H.A. Socy, Inc. v. City

of Buffalo, 689 F.3d 263, 278-79 (2d Cir. 2012).

II.
Despite Murphys record of slipshod work, faulty analysis,
and statistical sleight of hand, the EEOC continues on appeal to
defend his testimony.
A+

report,

the

EEOC

Conceding that Murphys report was not an

nevertheless
19

says

that

it

meets

some

indeterminate threshold of reliability.

In doing so, however,

the Commission advances positions that are not grounded in law.

Most troubling is its view that problems in an experts data are
an inappropriate reason to exclude that expert.
Evidence
foundation.
(1993).

is

admissible

only

if

it

rests

on

reliable

Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597

Thus, the trial court must probe the reliability and

relevance of expert testimony any time such testimonys factual

basis,

data,

sufficiently

principles,
called

methods,

into

or

their

question.

application

Kumho

Carmichael, 526 U.S. 137, 149 (1999).

Tire

Co.

are
v.

Federal Rule of Evidence

702 likewise directs courts to verify that expert testimony is

based on sufficient facts or data.

See Fed. R. Evid. 702(b).

is

court

may

conclude

that

there

simply

too

great

an

analytical gap between the data and the opinion offered, and
accordingly choose to exclude the opinion.

Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 146 (1997).

The

EEOC,

however,

ignores

this

threshold

analysis

by

contending that the issue of the reliability of an experts data

is always a question of fact for the jury, except perhaps in
some

theoretical,

rare

case.

See,

e.g.,

Reply

Br.

15

([P]urported flaws in Murphys analyses concerned data . . .

and therefore concerned weight/credibility issues for trial, not
admissibility.).

The

agencys
20

contention

ignores

Dauberts

instruction that the district court must act as a gatekeeper.

Moreover, no court has accepted the agencys argument.

Rather,

courts widely agree that trial judges may evaluate the data
offered to support an experts bottom-line opinions to determine
if

that

testimony

data

provides

adequate

as

reliable.

support

Milward

v.

to

mark

Acuity

the

experts

Specialty

Prods.

Grp., Inc., 639 F.3d 11, 15 (1st Cir. 2011) (quotation marks and
alteration omitted); accord Blunt v. Lower Merion Sch. Dist.,
767 F.3d 247, 276 (3d Cir. 2014); In re TMI Litig., 193 F.3d
613, 697 (3d Cir. 1999); United States v. City of Miami, 115
F.3d 870, 873 (11th Cir. 1997).
simply

meritless,

but

The EEOCs contention was not

unsupported

and

without

legal

foundation.

The EEOC wields significant power, some of which stems from

the agencys broad discretion to investigate, conciliate, and
enforce,

and

some

of

which

derives

from

public

actions

that

exert influence outside the courtroom. The Commissions actions

can be also expected to have broader consequences than those of
an

ordinary

litigant

given

the

vast

disparity

between the government and private litigants.

Steaks, Inc., 667 F.3d 510, 519 (4th Cir. 2012).

21

of

resources

EEOC v. Great

In

deciding

when

to

act,

the

sometimes-competing

responsibilities.

agency

the

must

employer

serve

from

employees

engaging

under Title VII.

in

any

Commission
On

the

interest

unlawful

must
one

by

hand,

the

preventing

employment

42 U.S.C. 2000e-5(a).

balance

an

practice

On the other hand,

the EEOC owes duties to employers as well: a duty reasonably to

investigate charges, a duty to conciliate in good faith, and a
duty to cease enforcement attempts after learning that an action
lacks merit.

EEOC v. Argo Distrib., LLC, 555 F.3d 462, 473

(5th Cir. 2009).

That the EEOC failed in the exercise of this

second duty in the case now before us would be restating the

obvious.
The EEOC must be constantly vigilant that it does not abuse
the power conferred upon it by Congress, as its significant
resources,
outside

authority,

parties

they

and

discretion

investigate

or

will

affect

sue.

EEOC

all

those

v.

Propak

Logistics, Inc., 746 F.3d 145, 156 (4th Cir. 2014) (Wilkinson,
J., concurring).

Government has a more unfettered hand over

those it either serves or investigates, and it is thus incumbent

upon

public

officials,

high

and

petty,

to

maintain

some

appreciation for the extent of the burden that their actions may
impose.

Id.

The Commissions conduct in this case suggests

that its exercise of vigilance has been lacking.

It would serve

the agency well in the future to reconsider how it might better

22

discharge

the

responsibilities

delegated

consequences for failing to do so.

23

to

it

or

face

the